Abbey Adams Logo

Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982

  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer

  • Bloglovin
  • Facebook
  • LinkedIn
  • Phone
  • Home
  • Locations
    • Where We Practice in Florida
    • Where We Practice In Illinois
  • Practices
  • Attorneys
    • David J. Abbey
    • Jeffrey M. Adams
    • Bruce D. Burk
    • Robert P. Byelick
    • Jaime Eagan
    • Jennifer J. Kennedy
    • John D. Kiernan (1947-2016)
    • V. Joseph Mueller
    • Steven A. Ochsner
    • Alexis C. Upton
  • Blog
  • Links
  • Contact Us

December 7, 2018 by Jennifer Kennedy

Arbitration — Waiver — Purchaser’s dispute with motor vehicle dealer — Trial court properly determined that legally binding agreement to arbitrate existed, that dispute fell within scope of that agreement, and that defendant had not waived its right to arbitrate — Defendant’s failure to pay American Arbitration Association fees several years earlier in a different arbitration proceeding, which resulted in AAA’s refusal to arbitrate the current dispute, did not amount to waiver of right to arbitrate in this case involving different purchaser and different contract; and defendant promptly took necessary steps to resolve earlier dispute with AAA so that it could arbitrate current dispute — Plaintiff’s reliance on AAA Consumer Arbitration Rules is unavailing where rules were not expressly incorporated into contract at issue — Further, unavailability of AAA to conduct arbitration does not negate agreement to arbitrate, which provided that purchaser could choose AAA “or any other organization to conduct the arbitration subject to” dealer’s approval

43 Fla. L. Weekly D2611b

Arbitration — Waiver — Purchaser’s dispute with motor vehicle dealer — Trial court properly determined that legally binding agreement to arbitrate existed, that dispute fell within scope of that agreement, and that defendant had not waived its right to arbitrate — Defendant’s failure to pay American Arbitration Association fees several years earlier in a different arbitration proceeding, which resulted in AAA’s refusal to arbitrate the current dispute, did not amount to waiver of right to arbitrate in this case involving different purchaser and different contract; and defendant promptly took necessary steps to resolve earlier dispute with AAA so that it could arbitrate current dispute — Plaintiff’s reliance on AAA Consumer Arbitration Rules is unavailing where rules were not expressly incorporated into contract at issue — Further, unavailability of AAA to conduct arbitration does not negate agreement to arbitrate, which provided that purchaser could choose AAA “or any other organization to conduct the arbitration subject to” dealer’s approval 

PETER ADKINS, Appellant, v. MEMORIAL MOTORS, INC., d/b/a LAKELAND TOYOTA, Appellee. 2nd District. Case No. 2D18-1596. Opinion filed November 28, 2018. Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for Polk County; Catherine L. Combee, Judge. Counsel: Philip A. Rhodes, Patrick J. Cremeens, and Jeanne M. Cremeens of The Law Office of Patrick Cremeens, P.L., Tampa, for Appellant. Walter C. Thomas, Jr., Lakeland, for Appellee.

(VILLANTI, Judge.) Peter Adkins appeals an order granting Memorial Motors, Inc., d/b/a Lakeland Toyota’s motion to stay litigation and compel arbitration.1 Because the record does not support Adkins’ argument that Lakeland Toyota waived its right to arbitrate, we affirm.

Adkins purchased a used Audi from Lakeland Toyota, and as part of this purchase he signed a retail installment sale contract which contained a provision requiring the parties to arbitrate any dispute “which arises out of or relates to . . . [the] condition of this vehicle” if either party so requested. After Adkins experienced several problems with the Audi, he requested arbitration of the dispute by filing documents with the American Arbitration Association (AAA). However, because Lakeland Toyota had failed to pay certain arbitration fees several years earlier in a different arbitration proceeding before the AAA, the AAA initially refused to arbitrate the dispute.

As soon as Lakeland Toyota learned of the AAA’s refusal, it took the necessary steps to pay the past due fees to the AAA and then notified Adkins that arbitration could move forward. By then, however, Adkins had changed his mind and no longer wanted to arbitrate. Instead, he filed suit against Lakeland Toyota, which responded by filing a motion to stay the litigation and compel arbitration. At a hearing on Lakeland Toyota’s motion, the trial court determined that a legally binding agreement to arbitrate existed, that the parties’ dispute fell within the scope of that arbitration agreement, and that Lakeland Toyota had not waived its right to arbitrate. Therefore, the court granted the motion. Adkins then filed this appeal, arguing as he did below that Lakeland Toyota’s failure to pay the earlier AAA fees, which resulted in the AAA refusing to arbitrate the dispute, constituted a form of waiver of the right to arbitrate.

Both parties in this case agree that the elements a court must consider when determining whether to order arbitration are whether a valid written agreement to arbitrate exists, whether an arbitrable issue exists, and whether the right to arbitrate has been waived. See Seifert v. U.S. Home Corp., 750 So. 2d 633, 636 (Fla. 1999). They also agree that only the third element — waiver — is at issue in this appeal. Adkins contends that Lakeland Toyota’s act of failing to pay the AAA fees in a different case several years earlier constituted a waiver of its right to arbitrate in this case because its conduct amounted to a voluntary relinquishment of a known right to arbitrate. See Raymond James Fin. Servs., Inc. v. Saldukas, 896 So. 2d 707, 711 (Fla. 2005) (defining “waiver” as “the voluntary and intentional relinquishment of a known right or conduct which implies the voluntary and intentional relinquishment of a known right” (citing Major League Baseball v. Morsani, 790 So. 2d 1071, 1077 n.12 (Fla. 2001))). In contrast, Lakeland Toyota contends that its failure to pay the earlier fees is irrelevant because that act, in a different case with a different purchaser under a different contract, cannot constitute an intentional relinquishment of its contractual right to arbitrate the current dispute with Adkins.

While Lakeland Toyota’s actions in the prior proceeding may have constituted a waiver of its right to arbitrate in that proceeding, none of the actions it took in this proceeding are inconsistent with its right to arbitrate in this proceeding. When Lakeland Toyota received Adkins’ request to arbitrate, it promptly took the necessary steps to resolve its earlier dispute with the AAA so that it could arbitrate the current dispute with Adkins. Neither that action nor any of its other actions were inconsistent with its right to arbitrate in this case. Therefore, the trial court’s rationale in rejecting Adkins’ argument is fully supported by the record.

Moreover, Adkins’ reliance on the AAA Consumer Arbitration Rules is unavailing in this case for two reasons. First, the contractual right of a party to arbitration is not governed by rules unilaterally adopted by a private entity such as the AAA unless those rules are explicitly incorporated into the contract. Cf. Younessi v. Recovery Racing, LLC, 88 So. 3d 364, 365 (Fla. 4th DCA 2012) (holding that if the language of the contract clearly indicates that the AAA rules govern, then those rules are expressly incorporated into the contract and will govern resolution of the parties’ dispute). Here, the contract between Adkins and Lakeland Toyota does not expressly incorporate the AAA Consumer Arbitration Rules. Therefore, they cannot be applied to negate Lakeland Toyota’s contractual right to arbitrate.

Second, the unavailability of the AAA to conduct the arbitration does not negate the parties’ agreement to arbitrate. See New Port Richey Med. Inv’rs, LLC v. Stern ex rel. Petscher, 14 So. 3d 1084, 1087 (Fla. 2d DCA 2009). Here, the parties’ arbitration agreement provides that Adkins may choose the AAA “or any other organization to conduct the arbitration subject to” Lakeland Toyota’s approval. Therefore, even if the AAA rules bar the AAA from arbitrating this dispute, those rules do not prevent Lakeland Toyota from enforcing its contractual right to have the dispute arbitrated by “any other organization” authorized to conduct arbitrations. Instead, in compliance with the contract, Adkins may select a different organization to arbitrate this dispute.

Accordingly, because the trial court was eminently correct in granting Lakeland Toyota’s motion to stay litigation and compel arbitration, we affirm.

Affirmed. (SILBERMAN and ROTHSTEIN-YOUAKIM, JJ., Concur.)

__________________

1We have jurisdiction. See Fla. R. App. P. 9.130(a)(3)(C)(iv).

* * *

Filed Under: Uncategorized

Primary Sidebar

Blog Archives

  • January 2021
  • November 2020
  • October 2020
  • September 2020
  • August 2020
  • July 2020
  • June 2020
  • May 2020
  • April 2020
  • March 2020
  • February 2020
  • January 2020
  • December 2019
  • November 2019
  • October 2019
  • September 2019
  • August 2019
  • July 2019
  • June 2019
  • May 2019
  • April 2019
  • March 2019
  • February 2019
  • January 2019
  • December 2018
  • November 2018
  • October 2018
  • September 2018
  • August 2018
  • July 2018
  • June 2018
  • May 2018
  • April 2018
  • February 2018
  • January 2018
  • December 2017
  • November 2017
  • October 2017
  • September 2017
  • August 2017
  • July 2017
  • June 2017
  • May 2017
  • April 2017
  • March 2017
  • February 2017
  • January 2017
  • December 2016
  • November 2016
  • October 2016
  • September 2016
  • August 2016
  • July 2016
  • June 2016
  • May 2016
  • April 2016
  • March 2016
  • February 2016
  • January 2016
  • December 2015
  • November 2015
  • October 2015
  • September 2015
  • August 2015
  • July 2015
  • June 2015
  • May 2015
  • April 2015
  • March 2015
  • February 2015
  • January 2015
  • December 2014
  • November 2014
  • October 2014
  • September 2014
  • August 2014
  • July 2014
  • June 2014
  • May 2014
  • April 2014
  • March 2014
  • February 2014
  • January 2014
  • December 2013
  • November 2013

Footer

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Website or any of the e-mail links contained within the site do not create an attorney-client relationship between Abbey, Adams, Byelick & Mueller, L.L.P. and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney. opens in a new windowAbbey, Adams, Byelick, & Mueller XML Sitemap Index

Copyright © 2021 · Abbey Adams Byelick & Mueller, LLP · All Rights Reserved · Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982